236 F.3d 1243 (10th Cir.

2001)

WANDA JEAN ALLEN, Petitioner-Appellant,

v.
NEVILLE MASSIE, Respondent-Appellee.
No. 98-6340

UNITED STATES COURT OF APPEALS FOR THE TENTH

CIRCUIT
January 04, 2001

(D.C. No. CV-96-796-L), (W.D. Okla.)Before BRORBY, BRISCOE, and

MURPHY, Circuit Judges.

ORDER
PER CURIAM
1

This case is before the court on Wanda Jean Allen's motion to recall the
mandate and accompanying request for a stay of execution. This court
previously affirmed the district court's denial of Allen's 28 U.S.C. 2254 habeas
petition, which petition challenged her first degree murder conviction and
resulting death sentence. See Allen v. Massie, No. 98-6340, 2000 WL 16321
(10th Cir. Jan. 11) (unpublished disposition), cert. denied, 121 S. Ct. 244
(2000). In her motion to recall the mandate, Allen asks this court to reexamine
her claims of ineffective assistance of trial counsel in light of the Supreme
Court's recent opinion in Williams v. Taylor, 120 S. Ct. 1495 (2000). This court
construes Allen's motion to recall the mandate as an application to file a
successive habeas corpus petition, denies the application on the ground that it
does not satisfy the requirements of 28 U.S.C. 2244(b), and denies Allen's
request for a stay of execution.1

In a recent decision, the Supreme Court held that a federal court's power to
grant a petitioner's motion to recall the mandate in a 28 U.S.C. 2254 habeas
case is narrowly constrained by the provisions of 2244(b). See Calderon v.
Thompson, 523 U.S. 538, 553-54 (1998). The Court stated:

In a 2254 case, a prisoner's motion to recall the mandate on the basis of the
merits of the underlying decision can be regarded as a second or successive
application for purposes of 2244(b). Otherwise, petitioners could evade the bar
against relitigation of claims presented in a prior application, 2244(b)(1), or the
bar against litigation of claims not presented in a prior application, 2244(b)(2).
If the court grants such a motion, its action is subject to AEDPA irrespective of
whether the motion is based on old claims (in which case 2244(b)(1) would
apply) or new ones (in which case 2244(b)(2) would apply).

Id. at 553; see also Gray-Bey v. United States, 209 F.3d 986, 988 (7th Cir.
2000) (holding that pursuant to Calderon a petitioner's "motion to recall the
mandate is effectively an application for leave to pursue another collateral
attack" and noting that "it would be proper to recall the mandate only if it is
proper to authorize a second or successive collateral attack" pursuant to
2244(b)). In light of the Supreme Court's very specific language in Calderon,
this court can grant Allen's request to recall the mandate only if that request
satisfies the requirements of 2244(b).

In her motion, Allen requests that the court recall the mandate in order to
reexamine her claims of ineffective assistance of counsel in light of the
Supreme Court's decision in Williams. To be clear, Allen is not asserting a new
factual predicate in support of her claim of ineffective assistance.2 Instead, she
simply asserts that in light of the Williams decision, this court's previous
resolution of her claims is incorrect. Section 2244(b)(1) is clear, however, that
"[a] claim presented in a second or successive habeas corpus application under
section 2254 that was presented in a prior application shall be dismissed."
Accordingly, Allen is not entitled to file a second or successive 2254 habeas
petition for the purpose of relitigating her claims of ineffective assistance of
counsel.

Even assuming that 2244(b)(1) did not operate to preclude this court from
granting Allen's motion, the motion nevertheless fails to satisfy the standard set
out in 2244(b)(2)(A). That section mandates dismissal of a claim not presented
in a prior petition unless "the applicant shows that the claim relies on a new
rule of constitutional law, made retroactive to cases on collateral review by the
Supreme Court, that was previously unavailable." 28 U.S.C. 2244(b)(2)(A).
There is simply nothing in the Supreme Court's decision in Williams that even
remotely resembles a new rule of constitutional law. Instead, the Williams
Court merely reaffirmed that all claims of ineffective assistance of counsel
should be resolved by reference to the well-established rubric set forth in
Strickland v. Washington, 466 U.S. 668 (1984). See Williams, 120 S. Ct. at

1511-12; id. at 1523-24 (O'Connor, J., concurring in part and concurring in the
judgment).
7

This court is aware that 2244(b) does not foreclose the possibility a federal
court could recall its mandate sua sponte to reconsider issues raised in a
petitioner's first federal habeas petition. See Calderon, 523 U.S. at 554, 118
S.Ct. 1489.3 Nevertheless, the Supreme Court has held that even when the
AEDPA does not apply, a court of appeals' discretion to recall its mandate sua
sponte is seriously constrained by the foundational principles "underlying our
habeas corpus jurisprudence." Id. Accordingly, "where a federal court of
appeals sua sponte recalls its mandate to revisit the merits of an earlier decision
denying habeas corpus relief to a state prisoner, the court abuses its discretion
unless it acts to avoid a miscarriage of justice." Id. at 558. That standard "is
concerned with actual as compared to legal innocence" of the petitioner, is
"narrow [of] scope," and is "demanding in all cases." Id. at 559 (quotations
omitted). See generally id. at 559-566 (explicating rigorousness of "miscarriage
of justice" standard in this context both as applied to the validity of an
underlying conviction or an attendant death penalty). In the particular context
of Allen's claim that her counsel was ineffective for failing to present certain
mitigation evidence during the penalty phase of the trial, she can satisfy the
miscarriage of justice standard only by showing with "clear and convincing
evidence that no reasonable juror would have found [her] eligible for the death
penalty in light of the new evidence." Id. at 560 (quotations omitted). In light of
this standard, it is clear that this is not one of those exceedingly rare cases in
which a sua sponte recall of the mandate would be appropriate.

Allen's motion to recall the mandate, deemed an application to file a second or

successive 2254 habeas petition, is hereby DENIED. The accompanying
request for a stay of execution is also DENIED. Allen is reminded that the
denial by this court of authorization to file a second or successive petition "shall
not be appealable and shall not be the subject of a petition for rehearing or for a
writ of certiorari." 28 U.S.C. 2244(b)(3)(E).

NOTES:
1

Allen's motion is actually styled as follows: "MOTION TO RECALL THE

MANDATE, FOR STAY OF EXECUTION, AND FOR EMERGENCY EN
BANC RECONSIDERATION." To the extent that Allen's motion could be
construed as a renewed petition for rehearing before either this panel or the en
banc court, the petition is precluded by operation of this court's rules. See 10th
Cir. R. 40.3 ("The court will accept only one petition for rehearing from any

party to an appeal. No motion to reconsider the court's ruling on a petition for

rehearing may be filed."); 10th Cir. R. 35.1(C) ("The court will not reconsider
either the denial of an en banc petition or an en banc disposition."). Allen
previously filed in this court a petition for rehearing with suggestion for
rehearing en banc. On February 25, 2000, this court entered its order noting that
the panel had unanimously voted to deny rehearing and that no active judge had
called for a poll on the suggestion for rehearing en banc. Accordingly, to the
extent that Allen's petition is construed as a renewed petition for panel or en
banc rehearing, it is hereby rejected.
2

For that reason, 28 U.S.C. 2244(b)(2)(B) is not implicated in this case.

It must be noted that a court's characterization of its action as sua sponte in

recalling the mandate does not necessarily control the question of the
applicability of the AEDPA. In that regard, the Supreme Court has noted as
follows:
As a textual matter, 2244(b) applies only where the court acts pursuant to a
prisoner's "application." This carries implications for cases where a motion to
recall the mandate is pending, but the court instead recalls the mandate on its
own initiative. Whether these cases are subject to 2244(b) depends on the
underlying basis of the court's action. If, in recalling the mandate, the court
considers new claims or evidence presented in a successive application for
habeas relief, it is proper to regard the court's action as based on that
application. In these cases, 2244(b)(2) applies irrespective of whether the court
characterizes the action as sua sponte.
In [this] case, however, the Court of Appeals was specific in reciting that it
acted on the exclusive basis of [the petitioner's] first federal habeas petition.
The court's characterization of its action as sua sponte does not, of course, prove
this point; had the court considered claims or evidence presented in [the
petitioner's] later filings, its action would have been based on a successive
application, and so would be subject to 2244(b). But in [this] case the court's
recitation that it acted on the exclusive basis of his first federal petition is not
disproved by consideration of matters presented in a later filing. Thus we deem
the court to have acted on his first application rather than a successive one. As a
result, the court's order recalling its mandate did not contravene the letter of
AEDPA.
Calderon, 523 U.S. at 554, 118 S.Ct. 1489.